Bodily injury lawsuit against City of Montreal not barred by six-month prescriptive period

The family of a Montreal woman murdered in 2010 is not barred, by the six-month prescriptive period in Quebec’s Cities and Towns Act, from suing the city, the Supreme Court of Canada suggested in a ruling released Friday.

In the weeks before she was killed seven years ago, Maria Altagracia Dorval “had complained in vain” to Montreal police “after receiving death threats from her former spouse,” Justice Richard Wagner of the Supreme Court of Canada wrote. Three of her family members “argue that the police failed to take appropriate action” to ensure her safety, added Justice Wagner on behalf of the majority of Canada’s highest court, which upheld a Quebec Court of appeal ruling released in 2015. The Dorval family’s allegations have not been proven in court.

The Cities and Towns Act “provides that every action against a municipality is prescribed by six months from the day on which the cause of action accrued,” but article 2925 of the Civil Code of Quebec has a “three‑year general law prescriptive period” where a lawsuit is “based on the obligation to make reparation for bodily injury caused to another,” Justice Wagner added.

Initially, in 2014, Justice Francine Nantel of the Superior Court of Quebec ruled that the Dorvals’ lawsuit should be dismissed, due to the six-month prescriptive period in the Cities and Towns Act. Justice Nantel found that Maria Dorval’s family has not “suffered any bodily injury as a result of Ms. Dorval’s death” but rather “they had suffered moral and material injury.”

In 2015, Justice Nantel’s ruling was overturned by the Court of Appeal of Quebec. The City of Montreal unsuccessfully appealed to the Supreme Court of Canada. Only two of the Supreme Court of Canada judges – Suzanne Côté and Russell Brown – hearing the city’s appeal would have restored Justice Nantel’s 2014 ruling dismissing the lawsuit.

The issue is over the words “where an action is based on the obligation to make reparation for bodily injury caused to another” in article 2930 of the Civil Code of Quebec, the majority of the Supreme Court of Canada noted. Article 2930 “provides that ‘[n]otwithstanding any provision to the contrary, where an action is based on the obligation to make reparation for bodily injury caused to another, the requirement … that the action be instituted within a period of less than 3 years … cannot affect a prescriptive period provided for in this Book,’” Justice Wagner noted.

A court must “characterize the basis for the action in order to determine” whether article 2930 “applies to a particular case,” Justice Wagner wrote. In the Dorvals’ lawsuit against the city, the basis for the action is “the wrongful act that gave rise to interference with the deceased victim’s physical integrity, that is, to the bodily injury he or she suffered,” Justice Wagner continued. “This means that, for the purposes of this article, it is the nature of the initial interference rather than the head of damages being claimed that results in the injury being characterized as ‘bodily injury’ and that constitutes the source or basis of the action.”

When it overturned Justice Nantel’s ruling in 2015, the Court of Appeal of Quebec found that the Dorvals’ lawsuit was subject to the three-year prescriptive period in the Civil Code because the lawsuit “is based on the City’s obligation to make reparation for bodily injury caused to Ms. Dorval and because the pecuniary and non‑pecuniary consequences suffered by the family members were the immediate and direct result of the wrongful interference with Ms. Dorval’s physical integrity.”

Among the cases cited were the British Judicial Committee of the Privy Council ruling released in 1934 in Regent Taxi & Transport Co. v. La Congrégation des Petits Frères de Marie. That was over a lawsuit filed in Quebec by a religious community against a bus operator after a man was injured. Regent Taxi appealed the Supreme Court of Canada’s 1929 ruling but the Privy Council refused to recognize, in the context of Quebec law, “the application of different prescriptive periods depending on whether the action was instituted by the victim of bodily injuries or by a third party whose action for material damages was based on the bodily injures caused to the victim,” Justice Wagner wrote in 2017 in Montréal (City) v. Dorval.

“All victims who suffer direct and immediate consequences of the same wrongful interference must have the same period of extinctive prescription to institute their actions,” Justice Wagner added.